IMPORTANT POINT
In the present case enclosing the verandah of a shop would not amount to impairing materially the value or utility of the shop and hence landlord cannot succeed in evicting tenant u/s 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949.

Headnote:East Punjab Urban Rent Restriction Act, 1949-Section 13(2)(iii)-Eviction petition on ground of tenant having committed such acts as are likely to impair materially the value or utility of the building-Letting of shop with a verandah-The alteration is that the verandah has been covered up by construction of walls on the two sides and a rolling shutter in the front-Whether falls under Section 13(2)(ii)-High Court holding "No"-Whether correct? (Yes)-Appeal dismissed-Case law discussed.
Held : Thus an Order for eviction can be passed only if the landlord proves (a) that the tenant had carried out the construction, (b) that the same was without the consent of the landlord and (c) that the value or utility had been materially impaired. In the present case, the first Appellate Court, on facts, concluded that the Respondent had carried out alteration by enclosing the verandah. On facts it has been held that this has been done without the consent of the Appellant. The Revisional Court has correctly not interfered with the findings of fact. We also see no reason to take a different view on a question of fact. However, the question still arises whether merely because a verandah is enclosed it can be inferred, without any further evidence or proof, that the value and utility is affected. On the question of material impairment of value or utility the Appellant has lead no evidence at all. The submission has been that no evidence was required to be lead as it has to be inferred that the value or utility had been diminished. We are unable to accept such a submission. In the case of a shop, particularly in a business locality, the area of the shop gets increased by the verandah getting enclosed. This would increase the value and utility of the shop. In this case there is no proof, like in Vipin Kumar s case (supra), that free flow of light and air has been stopped. On the contrary, by putting up a rolling shutter in the front the flow of light and air is increased. In the absence of any proof of material impairment in value or utility, the High Court was right in concluding that no decree for eviction could be passed. We, therefore, see no reason to interfere with the Judgment of the High Court. Accordingly the Appeal stands dismissed. There will be no order as to costs. (Paras 15, 16 and 17)

JUDGMENT

S.N. Variava, J.-This Appeal is against a Judgment dated 14th March, 2000.

2. Briefly stated the facts are as follows:

The Appellant, who is a landlord of the concerned premises, filed Eviction Petition on two grounds, namely, arrears of rent and secondly that there was material alteration in the shop without the written consent of the landlord. The Appellant claimed that the shop had thus been materially impaired in value and utility. The Respondent immediately deposited the rent in Court and, therefore, the first ground did not survive. The Petition was contested only on the ground of material alteration.

3. On 9th November, 1987 the Rent Controller rejected the ejectment Petition holding that the Appellant had not been able to prove that the Respondent had made any additions/alterations. The Rent Controller also held that the alterations were not of such a nature that they had impaired the value and utility of the shop.

4. The Appellant filed an Appeal which was allowed by an Order dated 26th May, 1989. The Appellate Court held that the additions/alterations had been made by the Respondent-tenant and that they materially impaired the value and utility of the shop. The Respondent then filed a Civil Revision before the High Court which has been allowed by the impugned Judgment. The High Court has not disturbed the finding of fact that the alteration was made by the Respondent. The High Court has, however, concluded that the alteration was such that it had not materially impaired the value and utility of the shop. Hence this Appeal.

5. Before we consider the submissions, the necessary provisions need to be set out. Sections 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949 reads as follows:

"13. Eviction of tenants.-

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(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in this behalf. If the Controller after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied :

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(iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land,

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xxx xxx xxx"

Thus it is to be seen that the act of the tenant must be one which is likely to impair, materially, the value or utility of the building or the rented land.

6. In this case what was let out was a shop with a verandah. The alteration is that the verandah has been covered up by construction of walls on the two sides and a rolling shutter in the front. The original door has also been removed. The question would be whether enclosing the verandah would amount to impairing materially the value or utility of the shop. A number of authorities have been cited. We therefore need to consider those authorities.

7. Mr. Sudhir Walia first relied upon the case of Dewan Chand v. Babu Ram reported in (1980) 2 RCJ 615. In this case the tenant had removed rafters of the shop from the wall and placed a lintel thereon. The tenant had also constructed two walls on two sides of the verandah and fixed a door on the outer wall of the two sides. It was found, as a matter of fact, that the changes had caused cracks on the walls of the first floor. Because of this the Court held that the changes had impaired materially the value and utility of the shop. This case therefore would be of no assistance to the Appellant as, admittedly, in the present case, it has not been shows that as a result of the changes the shop is damaged in any manner.

8. Mr. Walia next relied upon the case of Vipin Kumar v. Roshal Lal Anand reported in (1993) 2 SCC 614. In this case, the tenant had constructed a wall on the verandah and put up a door. The tenant had also removed certain fixtures. This Court held as follows:

"Clause (iii) of sub-section (2) of Section 13 provides that "if the tenant has committed such acts as are likely to impair ma

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2002 Supreme(SC) 1082

IMPORTANT POINTIn the present case enclosing the verandah of a shop would not amount to impairing materially the value or utility of the shop and hence landlord cannot succeed in evicting tenant u/s 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949.

Cases Referred (5)

IMPORTANT POINT
In the present case enclosing the verandah of a shop would not amount to impairing materially the value or utility of the shop and hence landlord cannot succeed in evicting tenant u/s 13(2)(iii) of the East Punjab Urban Rent Restriction Act, 1949.